차 례
Ⅰ 특허요건
1. 성립성 ··················································································································· 1
가. 산업상 이용가능성의 인정여부 ···································································· 1
나. 미완성 발명의 인정여부 ············································································· 23
다. BM발명의 인정여부 ···················································································· 43
라. SW발명의 인정여부 ···················································································· 48
마. 직무발명의 인정요건 ·················································································· 49
(1) 직무발명의 승계여부 ············································································ 49
(2) 공무원직무발명의 인정여부 ·································································· 62
(3) 직무발명보상금의 인정여부 ·································································· 63
바. 공동발명의 인정여부 ·················································································· 67
사. 발명대상의 인정여부 ·················································································· 82
아. 의료행위의 인정여부 ·················································································· 83
2. 신규성 ················································································································· 87
가. 동일성의 판단기준 ······················································································ 87
나. 카테고리가 다른 경우의 동일성 인정여부 ················································ 92
다. 신규성의 상실요건 ······················································································ 93
라. 공지 ․ 공용의 인정여부 ················································································ 97
(1) 공지의 경우 ··························································································· 97
(2) 일부공지의 경우 ·················································································· 135
(3) 공지의 인정시점 ·················································································· 136
(4) 공용(공연실시)의 경우 ········································································ 139
(5) 주지 ․ 관용의 경우 ··············································································· 159
(6) 사양서(샘플)의 경우 ··········································································· 162
(7) 논문의 경우 ························································································· 163
마. 선행문헌의 인정요건 ················································································ 164
(1) 반포된 간행물의 경우 ········································································· 164
(2) 디자인 공보의 경우 ············································································ 180
(3) 인터넷 출력물의 경우 ········································································· 181
바. 신규성 의제의 인정여부 ··········································································· 184
사. 전제부 구성의 인정여부 ··········································································· 189
아. 진보성과의 관계 ······················································································· 191
자. 특정발명의 신규성 인정여부 ···································································· 194
(1) 선택발명의 경우 ·················································································· 194
(2) 용도발명의 경우 ·················································································· 202
(3) PBP 클레임의 경우 ············································································· 203
(4) 파라미터발명의 경우 ··········································································· 204
(5) 수치한정발명의 경우 ··········································································· 205
3. 진보성 ··············································································································· 209
가. 일반적인 판단기준 ···················································································· 209
나. 카테고리가 다른 경우의 진보성 인정여부 ·············································· 224
다. 공지기술의 결합의 인정여부 ···································································· 227
(1) 공지기술의 단순결합의 경우 ······························································ 227
(2) 공지기술의 유기적 결합의 경우 ························································· 264
(3) 공지기술과 주지 ․ 관용기술의 단순결합의 경우 ································· 273
(4) 동기 유무에 따른 공지기술의 결합의 경우 ······································· 287
(5) 공지기술에 부정적인 가르침(Teach Away)이 있는 경우 ················· 342
(6) 공지기술의 전용의 경우 ····································································· 356
(7) 주지 ․ 관용기술의 전용의 경우 ···························································· 361
(8) 공지기술이 다수의 선행문헌에 존재하는 경우 ·································· 365
(9) 사후적 고찰(후지혜)의 인정여부 ························································ 366
(10) 실시예 결합의 인정여부 ··································································· 386
(11) 구성요소 결합의 인정여부 ································································ 387
라. 단순한 설계변경의 인정여부 ···································································· 387
(1) 단순한 설계변경을 인정하는 경우 ····················································· 387
(2) 단순한 설계변경을 부정하는 경우 ····················································· 403
마. 명세서에 기재되지 않은 효과의 인정여부 ·············································· 404
바. 과제의 해결원리에 의한 진보성의 인정여부 ··········································· 411
사. 기술의 풍부화에 의한 진보성의 인정여부 ·············································· 413
아. 상업적 성공의 참작여부 ··········································································· 414
자. 국제예비심사보고서의 인정여부 ······························································· 423
차. 기술분야의 동일성 인정여부 ···································································· 424
카. 통상의 기술자의 인정여부 ······································································· 466
타. 선행문헌의 인정요건 ················································································ 468
(1) 명세서상의 종래기술의 경우 ······························································ 468
(2) 미완성 발명의 경우 ············································································ 471
(3) 실용신안 공보의 경우 ········································································· 484
(4) 디자인 공보의 경우 ············································································ 485
(5) 특허성 결여의 경우 ············································································ 486
(6) 거절결정 확정의 경우 ········································································· 487
(7) 주지 ․ 관용기술의 경우 ········································································ 487
(8) 도면 오류의 경우 ················································································ 489
(9) 발행일 변조의 경우 ············································································ 489
(10) 사문서의 진정성립 ············································································ 490
파. 전제부 구성의 인정여부 ··········································································· 491
하. 특정발명의 진보성 인정여부 ···································································· 492
(1) 수치한정발명의 경우 ··········································································· 492
(2) 파라미터발명의 경우 ··········································································· 547
(3) 선택발명의 경우 ·················································································· 556
(4) BM발명의 경우 ··················································································· 572
(5) PBP 클레임의 경우 ············································································· 576
(6) 기능식 클레임의 경우 ········································································· 598
(7) 화학물질발명의 경우 ··········································································· 601
(8) 합금발명의 경우 ·················································································· 602
(9) 결정형발명의 경우 ·············································································· 603
(10) 의약용도발명의 경우 ········································································· 607
(11) 복합제제발명의 경우 ········································································· 611
4. 선원주의 ············································································································ 613
가. 동일성의 판단기준 ···················································································· 613
나. 선원의 지위의 인정여부 ··········································································· 621
다. 중복특허(Double Patent)의 인정여부 ······················································ 622
5. 확대된 선원주의 ······························································································· 632
가. 동일성의 판단기준 ···················································································· 632
나. 선원의 지위의 인정여부 ··········································································· 659
6. 기재불비 ············································································································ 665
가. 명세서의 기재요건 ···················································································· 665
나. 청구범위의 기재요건 ················································································ 714
(1) 제42조 제4항 제1호의 경우 ······························································· 714
(2) 제42조 제4항 제2호의 경우 ······························································· 754
(3) 제42조 제4항 제3호의 경우 ······························································· 800
다. 기능적 표현의 인정여부 ··········································································· 807
라. 독립항과 종속항의 판단기준 ···································································· 824
마. 물건발명과 방법발명의 판단기준 ····························································· 827
바. 신규사항의 인정여부 ················································································ 830
(1) 신규사항을 인정하는 경우 ·································································· 830
(2) 신규사항을 부정하는 경우 ·································································· 849
사. 요지변경의 인정여부 ················································································ 855
아. 요지변경에 의한 출원일 늦춤의 인정여부 ·············································· 868
자. 명세서에 기재된 특정 용어의 해석 ························································· 871
차. 의약용도발명의 경우 ················································································ 879
카. 화학물질발명의 경우 ················································································ 887
타. 유전공학발명의 경우 ················································································ 894
파. 중복기재 청구항의 인정여부 ···································································· 895
하. 명세서 기재오류의 인정여부 ···································································· 897
7. 선행발명이 하위개념인 경우의 법적 취급 ······················································ 903
8. 특허독립의 원칙 ······························································································· 908
가. 청구항 독립의 원칙 ·················································································· 908
나. 국가별 독립의 원칙 ·················································································· 909
Ⅱ 권리범위
1. 권리범위해석 ···································································································· 913
가. 권리범위의 문언해석 ················································································ 913
(1) 권리무효의 경우 ·················································································· 913
(2) 권리행사의 경우 ·················································································· 958
나. 권리범위의 제한해석 ················································································ 970
(1) 권리무효의 경우 ·················································································· 970
(2) 권리행사의 경우 ·················································································· 978
다. 권리범위의 합리해석 ················································································ 994
(1) 권리무효의 경우 ·················································································· 994
(2) 권리행사의 경우 ················································································ 1019
라. 기재불비가 있는 경우의 권리범위해석 ·················································· 1041
마. 선택적 기재가 있는 경우의 권리범위해석 ············································ 1042
바. 폐쇄적 기재가 있는 경우의 권리범위해석 ············································ 1043
사. 개방적 기재가 있는 경우의 권리범위해석 ············································ 1044
아. 권리범위의 확장적 변경의 인정여부 ····················································· 1048
자. 실시예(도면)에 의한 권리범위의 제한여부 ············································ 1061
차. 종속항에 의한 권리범위의 제한여부 ····················································· 1063
카. 도면의 인용부호에 의한 권리범위의 제한여부 ····································· 1064
타. 내부증거 v. 외부증거 ············································································· 1067
파. 특정발명의 권리범위해석 ······································································· 1067
(1) BM발명의 경우 ················································································· 1067
(2) 수치한정발명의 경우 ········································································· 1068
(3) 기능식 클레임의 경우 ······································································· 1075
(4) PBP 클레임의 경우 ··········································································· 1085
(5) 생략발명의 경우 ················································································ 1088
(6) 선택발명의 경우 ················································································ 1095
(7) 물건을 생산하는 방법발명의 경우 ··················································· 1095
2. 권리범위적용 ··································································································· 1100
가. All Element Rule의 적용여부 ································································ 1100
나. 균등관계의 인정여부 ·············································································· 1136
(1) 균등관계를 인정하는 경우 ································································ 1136
(2) 균등관계를 부정하는 경우 ································································ 1193
다. 금반언의 인정여부 ·················································································· 1273
라. 이용관계의 인정여부 ·············································································· 1298
마. 특허요건별 권리범위의 인정여부 ··························································· 1307
(1) 산업상 이용가능성이 없는 경우 ······················································· 1307
(2) 신규성이 없는 경우 ·········································································· 1307
(3) 진보성이 없는 경우 ·········································································· 1315
(4) 선원주의에 위반한 경우 ··································································· 1325
(5) 확대된 선원주의에 위반한 경우 ······················································· 1327
(6) 청구범위의 기재가 불명료한 경우 ··················································· 1328
(7) 상세한 설명에 의해 뒷받침되지 않는 경우 ····································· 1332
(8) 실시가 불가능한 경우 ······································································· 1335
(9) 기술적 범위를 특정할 수 없는 경우 ··············································· 1340
바. 자유실시기술의 인정여부 ······································································· 1341
(1) 항변의 인정여부 ················································································ 1341
(2) 판단대상의 인정요건 ········································································· 1341
(3) 의약용도발명의 경우 ········································································· 1346
(4) 구체적인 판단방법 ············································································ 1347
사. 생산방법추정의 인정여부 ······································································· 1366
아. 카테고리가 다른 경우에의 적용여부 ····················································· 1367
자. 종속항에의 적용여부 ·············································································· 1371
차. 청구항별 적용여부 ·················································································· 1376
카. 복수주체의 적용여부 ·············································································· 1377
3. 권리범위의 확정시기 ······················································································ 1378
4. 확인대상발명의 인정여부 ··············································································· 1379
가. 확인대상발명의 해석 ·············································································· 1379
나. 확인대상발명의 특정여부 ······································································· 1395
다. 확인대상발명의 보정여부 ······································································· 1461
라. 보정을 간과한 심결의 적법여부 ···························································· 1483
5. 확인의 이익의 인정여부 ················································································· 1485
가. 적극적 권리범위확인심판의 경우 ··························································· 1485
나. 소극적 권리범위확인심판의 경우 ··························································· 1553
다. 이용관계가 성립하는 경우 ····································································· 1566
라. 후권리가 무효되는 경우 ········································································· 1584
마. 권리가 소멸하는 경우 ············································································· 1584
바. 특허권 소진의 경우 ················································································ 1600
사. 통상실시권의 경우 ·················································································· 1601
아. 선사용권의 경우 ······················································································ 1602
자. 성립요건의 경우 ······················································································ 1602
6. 전용실시권의 인정여부 ··················································································· 1603
7. 공유물 분할의 인정여부 ················································································· 1605
Ⅲ 정정범위
1. 실질적 변경 ···································································································· 1607
가. 실질적 변경을 인정하는 경우 ································································ 1607
나. 실질적 변경을 부정하는 경우 ································································ 1648
다. 오기 정정의 경우 ···················································································· 1713
라. 오류 정정의 경우 ···················································································· 1721
마. 요약 정정의 경우 ···················································································· 1727
바. 명칭 변경의 경우 ···················································································· 1727
사. 카테고리 변경의 경우 ············································································· 1728
아. 정정사유에 해당하지 않는 경우 ···························································· 1729
자. 독립특허요건을 필요로 하는 경우 ························································· 1732
2. 정정심판 v. 무효심판 ····················································································· 1734
가. 심판의 판단순서 ······················································································ 1734
나. 무효심판의 계속중 정정심결의 확정 ····················································· 1736
다. 무효심결 후 정정심결의 확정 ································································ 1739
라. 무효심판(이의신청) 계속중 정정심판의 청구 ········································ 1742
마. 무효심결 확정전 정정청구 ····································································· 1747
바. 무효심판 계속중 정정청구 ····································································· 1747
3. 심판청구서의 보정의 범위 ············································································· 1749
4. 정정불인정통지를 간과한 경우 ······································································ 1763
5. 정정청구(정정심결)를 간과한 심결의 적법여부 ············································ 1770
6. 정정청구의 재량권 인정여부 ·········································································· 1772
7. 일부정정의 인정여부 ······················································································ 1774
8. 정정청구의 확정시기 ······················································································ 1777
Ⅳ 출원일반
1. 출원서의 사용언어 ·························································································· 1785
2. 분할출원의 인정요건 ······················································································ 1786
3. 이중출원의 인정요건 ······················································································ 1792
4. 공동출원의 인정요건 ······················································································ 1793
5. 모인출원의 인정여부 ······················································································ 1799
6. 우선권의 인정요건 ·························································································· 1822
가. 동일성의 인정여부 ·················································································· 1822
나. 우선일의 인정여부 ·················································································· 1827
다. 취하간주의 인정여부 ·············································································· 1828
7. 보정의 인정요건 ····························································································· 1831
가. 보정의 판단순서 ······················································································ 1831
나. 보정의 판단범위 ······················································································ 1831
다. 삭제된 청구항을 인용하는 경우 ···························································· 1833
라. 보정을 간과한 경우 ················································································ 1834
마. 되돌리기 보정의 경우 ············································································· 1836
바. 직권에 의한 보정의 인정여부 ································································ 1837
사. 독립특허요건의 경과규정 ······································································· 1837
8. 미생물기탁의 인정여부 ··················································································· 1839
9. 존속기간연장의 인정여부 ··············································································· 1843
10. 국제출원특례의 인정여부 ············································································· 1846
11. 공서양속의 인정여부 ···················································································· 1848
12. 일부취하 ․ 일부포기 ․ 일부무효의 인정여부 ··················································· 1851
Ⅴ 심판일반
1. 심판청구인 ······································································································ 1855
가. 공동심판의 인정요건 ·············································································· 1855
(1) 공동심판의 경우 ················································································ 1855
(2) 심결취소소송의 경우 ········································································· 1858
(3) 공유자 피고의 경우 ·········································································· 1861
(4) 공유자 추가의 경우 ·········································································· 1862
나. 이해관계인의 인정범위 ··········································································· 1863
(1) 판단시점 ···························································································· 1863
(2) 무효심판의 경우 ················································································ 1866
(3) 권리범위확인심판의 경우 ·································································· 1883
(4) 특허청 심사관의 경우 ······································································· 1896
(5) 행정관청인 철도청장의 경우 ···························································· 1897
다. 쌍방대리 위반의 경우 ············································································· 1898
라. 무권대리의 인정여부 ·············································································· 1899
마. 당사자 정정의 인정여부 ········································································· 1900
2. 심판절차 ·········································································································· 1902
가. 직권심리의 인정여부 ·············································································· 1902
나. 구술심리의 인정여부 ·············································································· 1912
다. 공시송달의 인정요건 ·············································································· 1913
라. 보정을 간과한 심결의 적법여부 ···························································· 1914
마. 심리종결(예정시기)통지의 진정성 ·························································· 1916
바. 심결문의 기재정도 ·················································································· 1921
사. 심결문 경정의 인정여부 ········································································· 1924
아. 기속력의 인정여부 ·················································································· 1925
자. 심판청구기간의 인정여부 ······································································· 1940
(1) 기간의 추완 인정여부 ······································································· 1940
(2) 특허심판 v. 행정심판 ······································································· 1941
차. 이유서 부제출의 취소여부 ····································································· 1941
카. 수수료 미납의 취소여부 ········································································· 1942
타. 지분권에 대한 무효심판의 인정여부 ····················································· 1943
파. 심판관 제척의 인정여부 ········································································· 1944
하. 재심사유의 인정여부 ·············································································· 1945
(1) 재심의 제기기간 ················································································ 1945
(2) 판단유탈의 인정여부 ········································································· 1949
(3) 구체적인 재심사유 ············································································ 1951
3. 거절결정 ·········································································································· 1958
가. 거절이유의 기재정도 ·············································································· 1958
나. 거절이유해소의 인정여부 ······································································· 1961
다. 새로운 거절이유의 인정여부 ·································································· 1962
라. 새로운 거절이유 v. All or Nothing Rule ············································· 2007
마. 심사전치결과보고의 진정성 ···································································· 2010
바. 심사지침서의 진정성 ·············································································· 2013
사. 거절결정의 취소결정 ·············································································· 2014
아. All or Nothing Rule의 인정여부 ··························································· 2014
자. 우선권주장 누락의 경우 ········································································· 2019
차. 거절결정 v. 특허사정 ············································································· 2020
4. 보정각하결정 ··································································································· 2021
가. 불복의 의사표시의 인정여부 ·································································· 2021
나. 보정이 승인된 경우 불복여부 ································································ 2025
다. 보정각하결정의 확정여부 ······································································· 2026
라. 확정된 보정각하결정의 심리여부 ··························································· 2027
마. 보정각하결정과 다른 보정의 부적법 사유의 인정여부 ························· 2027
바. 보정각하결정의 소송에서의 심리범위 ···················································· 2034
사. 심판에서 불복하지 않은 보정각하결정의 소송에서의 심리여부 ··········· 2036
아. 위법한 보정각하결정을 간과한 심결의 취소여부 ·································· 2037
자. 청구항 신설의 인정여부 ········································································· 2038
차. 자기 자신을 인용하는 보정의 인정여부 ················································ 2038
카. 보정에 따른 새로운 거절이유의 인정여부 ············································ 2039
타. All or Nothing Rule의 인정여부 ··························································· 2047
파. 심사하지 않은 심사관 명의로 보정각하결정이 발송된 경우 ················ 2048
하. 구체적인 판단사례 ·················································································· 2049
5. 일사부재리 ······································································································ 2059
가. 판단시점 ·································································································· 2059
나. 각하심결의 경우 ······················································································ 2063
다. 동일사실의 인정요건 ·············································································· 2063
라. 동일증거의 인정요건 ·············································································· 2073
마. 중복제소(심판)의 인정여부 ····································································· 2086
바. 특허법원의 확정판결에서 일사부재리의 인정여부 ································ 2089
Ⅵ 특허소송
1. 소송일반 ·········································································································· 2093
가. 제소기간의 인정여부 ·············································································· 2093
(1) 토요일 제소의 경우 ·········································································· 2093
(2) 근로자의 날 제소의 경우 ································································· 2096
(3) 부가기간 신청의 경우 ······································································· 2097
(4) 당직실 접수의 경우 ·········································································· 2098
(5) 이중출원 제소의 경우 ······································································· 2099
나. 변론주의의 인정여부 ·············································································· 2100
다. 일부인용의 인정여부 ·············································································· 2102
라. 소송참가의 인정여부 ·············································································· 2103
(1) 공동소송참가의 경우 ········································································· 2103
(2) 보조참가의 경우 ················································································ 2104
(3) 참가인의 동의 인정여부 ··································································· 2106
마. 반소의 인정여부 ······················································································ 2107
바. 상고이유의 인정여부 ·············································································· 2108
사. 변론속행의 인정여부 ·············································································· 2111
아. 증거채부의 결정여부 ·············································································· 2112
자. 중간판결의 기속력 인정여부 ·································································· 2112
차. 전속관할의 인정여부 ·············································································· 2113
카. 전자소송의 인정여부 ·············································································· 2114
2. 심결취소소송 ··································································································· 2116
가. 소의 이익의 인정여부 ············································································· 2116
나. 소송물의 인정범위 ·················································································· 2124
(1) 소송물의 인정여부 ············································································ 2124
(2) 소송물의 특정여부 ············································································ 2125
다. 심결취소소송의 심리범위 ······································································· 2126
(1) 결정계 사건의 경우 ·········································································· 2126
(2) 당사자계 사건의 경우 ······································································· 2142
(3) 특허법원의 심리범위 ········································································· 2144
라. 주장 ․ 입증책임의 인정여부 ····································································· 2145
마. 자백의 인정여부 ······················································································ 2155
바. 보정의 인정여부 ······················································································ 2160
사. 원고적격의 인정여부 ·············································································· 2163
3. 침해소송 ·········································································································· 2166
가. 과실추정의 인정여부 ·············································································· 2166
나. 손해액의 인정범위 ·················································································· 2170
다. 간접침해의 인정요건 ·············································································· 2174
라. 원격실시의 인정여부 ·············································································· 2189
마. 청구취지의 특정여부 ·············································································· 2190
바. 표시행위의 인정여부 ·············································································· 2191
4. 침해죄의 인정여부 ·························································································· 2193
5. 특허권 소진의 인정여부 ················································································· 2198
6. 영업비밀의 인정요건 ······················································································ 2200
가. 비공지성의 인정여부 ·············································································· 2200
나. 경제적 유용성의 인정여부 ····································································· 2202
다. 비밀관리성의 인정여부 ··········································································· 2204
라. 금지기간의 인정여부 ·············································································· 2208
7. 가처분 절차에서 보전의 필요성의 인정여부 ················································· 2211
8. 공정거래법의 적용여부 ··················································································· 2214
편 자 신 흥 섭
공주사대부고 졸업 (1993)
서울대학교 전기공학부 졸업 (2001)
제38회 변리사 시험 합격 (2001)
김·장 법률사무소 변리사 (2002~2011)
(현) 더와이즈 특허법률사무소 대표변리사
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